Law Professor: Baltimore Officers Were Overcharged, Charges Will Likely Be Dismissed

3:50 PM 05/01/2015 | US

Chuck Ross | Reporter

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Charges filed against the six Baltimore police officers for their involvement in the death of Freddie Grey will be dismissed, a George Washington University law professor predicted in an interview with The Daily Caller.

John Banzhaf, who teaches public interest law, says that the charges announced by Baltimore state’s attorney Marilyn Mosby on Friday “go too far.”

“I think a prosecutor is going to have a hard time proving that the actions did in fact cause death, since they seem to have no theory as to how it occurred,” Banzhaf said in a phone interview.

Gray was arrested on April 12 after a foot chase with police. He was transported in a police van to a processing center, where he was found unresponsive. He was then taken to a hospital, where he underwent surgery.

His death on April 19 touched off massive protests across the nation, as well as rioting and looting in Baltimore.

Mosby said Friday that Gray’s arrest was illegal and that officers failed to provide him with medical assistance, even though he asked for it numerous times. A medical examiner ruled Gray’s death a homicide and determined that he suffered a broken neck and sustained a wound on the back of his head consistent with hitting it on a bolt on the van door.

The driver of the police van faces the toughest charges. Officer Caesar Goodson Jr. was charged with second-degree depraved-heart murder, manslaughter, assault and misconduct. Three other officers face voluntary or involuntary manslaughter charges. The other two face assault and misconduct charges. (RELATED: Six Baltimore Police Officers Charged In Freddie Gray’s Death)

But Banzhaf, who is most famous for his successful campaign to get smoking ads removed from TV, says that Mosby will have to show how each of the six charged officers directly contributed to Gray’s death.

“I think it is very difficult to pin responsibility on one person when you have four or five or six each doing a variety of things — or not doing a variety of things — which in some generalized way contributes to the overall outcome.”

“Again, you have to prove beyond a reasonable doubt, that each of the individuals — Officer X, Officer Y, Officer Z — what he did or didn’t do was a direct cause of what happened,” Banzhaf said.

Baltimore police policy dictates that arrestees placed in a police van must be restrained with a seat belt. However, the president of Baltimore’s Fraternal Order of Police has argued that the policy went into effect just days before Gray’s arrest. He also said that the new policy was not being properly communicated to beat officers.

Banzhaf says that even if Gray’s arrest was illegal, as Mosby asserts, the “chain of legal causation” appears to have been broken. Thus, the officers who arrested Gray should not face many of the charges they are accused of committing.

He presented a scenario in which an officer is charged in the death of an inmate who was falsely arrested and then beaten to death in jail. He said that opening the door to that type of charge creates a slippery slope.

As for accusations that the officers were negligent in failing to provide medical care to Gray even after he asked for it, Banzhaf said that the defendants would likely bring experts who will testify that prisoners often make false claims about injuries.

“I think the cops will be able to find lots of experts who will say ‘this is pretty well standard,'” Banzhaf said. The officers’ defense experts would likely argue that “lots of people who are arrested start screaming that they are in pain, they can’t breath, they are hurt and so on. They do it to get leniency, or to get cuffs removed, and they also do it so that they set up claims stating that they were mishandled by police.”

He said that overcharging would be particularly effective in a case with multiple defendants. By overcharging, one defendant is more likely to open up about the actions of a co-defendant.

But given Mosby’s flimsy case, Banzhaf says that those who are happy with Friday’s announcement may be disappointed if a judge throws the case out.

“The people who are cheering saying how wonderful this because they support Mr. Gray may be very sadly disappointed when a judge looks at this and says, ‘Well, Ms. Mosby, you just can’t come in here and say ‘at some point somebody did something and we believe this caused his death.””

“You have to tell me when it happened,” Banzhaf said.

He said that besides Mosby overcharging as a prosecutorial strategy, she also may have done so because of public pressure.

“I think any prosecutor in her position would recognize that Baltimore is a tinderbox and that if something decisive wasn’t done now, it would likely lead to more riots and more problems,” Banzhaf said.